Calcutta High Court
United Bank Of India & Anr vs Jayoti Banerjee & Anr on 4 February, 2020
Equivalent citations: AIRONLINE 2020 CAL 57
Author: Soumen Sen
Bench: Soumen Sen
GA No.2689 of 2019
APOT No.144 of 2019
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
ORIGINAL SIDE
UNITED BANK OF INDIA & ANR.
-Versus-
JAYOTI BANERJEE & ANR.
BEFORE:
The Hon'ble JUSTICE SOUMEN SEN
The Hon'ble JUSTICE SAUGATA BHATTACHARYYA
Date : 4th February, 2020.
Appearance:
Mr. R.N. Majumdar, Adv.
Mr. Sourav Chakraborty, Adv.
Mr. Supratim Bhattacharjee, Adv.
...for the appellant.
Mr. Sudeep Sanyal, Adv.
Mr. Sukanta Das, Adv.
Ms. Lopamudra Moitra, Adv.
Ms. Tutun Das, Adv.
...for the respondent.
The Court : By consent of the parties, the appeal and the application are taken up together for consideration.
The petitioner was an employee of the United Bank of India. He was placed under suspension pending departmental enquiry on 10th January, 2004. The petitioner was entitled to subsistence allowance during the period of suspension as per the provisions of bipartite settlement. The disciplinary proceedings initiated against the petitioner was ultimately concluded on 24th August, 2013 and the disciplinary authority imposed penalty of 2 'dismissal without notice'. The order of dismissal mentioned that the period of suspension shall not be treated as on duty and the petitioner would not be entitled to any pay and allowance including increment falling due, if any, during the period of suspension save and except what has been paid by way of subsistence allowance. The petitioner preferred an appeal against the order of dismissal and the appellate authority by an order dated 22nd January, 2015 affirmed the order of penalty imposed upon the petitioner by the disciplinary authority. Being aggrieved by the order of the appellate authority, the petitioner filed a writ petition. In the writ application, the petitioner has prayed for a direction upon the respondent to pay the petitioner full pay and allowance during the period of suspension taking into account the revision of pay. The petitioner also prayed for quashing of the impugned order of the disciplinary authority and the appellate authority. Before the learned Single Judge the petitioner, in support of his contention, had relied upon the following decisions:
i) Premier Automobiles Limited vs. Kamlakar Shantaram Wadke reported in (1976) 1 SCC 496 (paragraphs 10 and 23);
ii) Amiyo Kumar Biswas vs. UBI reported in 2006(4) Cal HN 53 (paragraph 13);
iii) Swapan Kumar Basu vs. UBI reported in 2004 (4) CHN 148 (paragraphs 7 and 29);3
iv) Biswambhar Basu vs. State of West Bengal reported in 2010 (2) Cal HN 194 (paragraph 6) The petitioner also relied upon Clauses 19.1 to 19.4 of the first bipartite settlement wherein the provisions of the disciplinary action and procedure had been set out. The petitioner also tried to make distinction between gross misconduct and minor misconduct by interpreting Clause 19.4 in his favour. The petitioner also relied on the scale of pay applicable to the bank employees as per the 8th bipartite settlement with effect from 1st November, 2002 and 9th bipartite settlement dated 1st November, 2007. The petitioner contended before the learned Trial Judge that the delay in disposal of the disciplinary proceedings was not attributable to him and accordingly he is entitled to receive full pay and allowance for the period of suspension in terms of the bipartite settlement. The bank, however, contended before the learned Single Judge that the petitioner is not entitled to receive any subsistence allowance over and above what has been paid to him during the period of suspension till his date of dismissal from service. The disciplinary authority also held that the petitioner's suspension shall not be treated as on duty and he will not be entitled to any pay and allowance including increment, if any, fallen due during the period of suspension. The learned Single Judge has taken into consideration the fact that the petitioner was suspended by an order dated 10th January, 2004. In the said order of suspension it was specifically mentioned that 4 during the period of suspension, the petitioner shall be paid subsistence allowance as per the provisions of the bipartite settlement. A criminal proceeding was also continuing against the petitioner. The petitioner challenged the parallel proceedings by filing a writ petition. By an order dated 25th August, 2004, the Court directed that the departmental proceeding should, for the present, be stayed while an investigation in the criminal case is pending. The bank was given liberty to mention the matter for vacation of such stay should it become necessary so to do in case of delay in the criminal proceeding. The criminal Court by an order dated 6th July, 2010 found the petitioner prima facie guilty of the offence under Section 409 of IPC and charge-sheet was filed. The departmental enquiry was reopened and the petitioner was directed to attend the said proceedings in the year 2013. The petitioner was given opportunity to present his case before the disciplinary authority. An enquiry report was prepared and forwarded to the petitioner. The petitioner submitted his written submission on the findings of the enquiry officer and by an order dated 24th August, 2013 the petitioner was imposed major punishment by way of dismissal from service without notice in terms of Clause 6A of the Memorandum of Settlement. The period of suspension of the petitioner was directed not to be treated as on duty and it was directed that the petitioner will not be entitled to any pay and allowance including increment falling due, if any, during the 5 period of suspension, save and except what has been paid by way of subsistence allowance.
In the instance case, the petitioner remained in suspension for a considerable period of time. There has been complete revision of pay during the period of his suspension. The learned Single judge while delivering the impugned judgment has relied upon the case of Swapan Kumar Basu vs. United Bank of India & Ors. wherein the Court held that the denial of revision of salary and allowance in matter of computation of subsistence allowance to employees is violative of Article 21 of the Constitution of India. Applying the same principle, in the instant case, the learned Single Judge noticed that in Swapan Kumar Basu (supra) the Court took into consideration the circular of the Indian Banks' Association being memo no PD/CIR/76/528/586 dated 11th August, 1998 wherein it was mentioned that the workmen employees under suspension will be eligible to be paid subsistence allowance reckoning the revised scales of pay on account of salary revision even if the date of suspension is prior to the date of salary revision. By the said circular the cases of workmen employees who were under suspension and in whose case salary revision had taken place subsequent to their suspension was directed to be reviewed and a decision needs to be taken for payment of arrears of subsistence allowance. In Swapan Kumar Basu (supra) the Court was faced with the provisions of Kerala Payment of Subsistence Allowance Act, 1972 and Section 3 of the West 6 Bengal Payment of Subsistence Allowance Act, 1969 in order to find out the amount to be paid to an employee under suspension. In Swapan Kumar Basu (supra) it was contended before the learned Single Judge that the subsistence allowance of bank employees including the petitioner is governed by paragraph 557 of the Shastri Award which reads as follows:
"557. Having considered the matter in all its aspects, we think that suspension allowance should be granted on the following scale :-
(1) For the first three months one-third of the pay and allowances which the workman would have got but for the suspension;
(2) Thereafter, where the enquiry is departmental by the bank, one-half of the pay and allowances for the succeeding months. Where the enquiry is by an outside agency, one-third of the pay and allowances for the next three months and thereafter one-half for the succeeding months until the enquiry is over."
After noticing the said paragraph and the Indian Banks' Association Circular dated 11th August, 1998 Justice Indira Banerjee, as Ladyship then was, before her elevation as Chief Justice of Madras High Court and thereafter to the Hon'ble Supreme Court had observed as follows:
"6. A reading of paragraph 557 of the Shastri Award makes it clear that a suspended bank employee is entitled to the requisite percentage of the salary that he would have got had he not been suspended. This means that a suspended employee would get the benefit of wage revisions after his suspension as also usual increments.7
7. It appears that Indian Banks Association issued a Circular being Memo No.PD/CIR 76/528/586 dated 11th August, 1998 the relevant portion whereof is extracted hereinbelow:
In the meeting held on 1st June, 1998 the Personnel Committee reviewed its earlier decision as above insofar as it related to workmen employees under suspension and decided that the workmen employees under suspension will be eligible to be paid subsistence allowance reckoning the revised scales of pay on account of salary revision even if the date of suspension is prior to the date of salary revision which will be in line with the decision of Madhya Pradesh and Haryana High Courts relating to payment of subsistence allowance to workmen employees in banks. Cases of workmen employees, who are under suspension and in whose case salary revision has taken place, subsequent to their suspension, may be reviewed in view of the above decision and paid arrears of subsistence allowance.
However, there shall be no change in the Committee's decision dated 12th September, 1989 as regards subsistence allowance payable to officers under suspension.
Member banks are requested to please be guided accordingly."
The issues in Swapan Kumar Basu (supra) were summarised in paragraph 12 of the judgment which reads:
"12. The sole question involved in the instant writ application is whether the petitioner is entitled to benefit of revision of pay and allowances effected after his suspension, for the purpose of computation of his subsistence allowance."
The submission of the parties before the learned Single Judge was summarised in paragraphs 13 to 16 of the said judgment, which reads as follows:
8
"13. Counsel appearing on behalf of the respondent bank submitted that paragraph 557 of the Shastri Award and/or circular of the Indian Banks Association can have no application to the employees of the bank in the State of West Bengal and Kerala since they are governed by the West Bengal Payment of Subsistence Allowance Act, 1969 and the Kerala Payment of Subsistence Allowance Act, 1972 respectively.
14. The provision of the Kerala Payment of Subsistence Allowance Act, 1972 are not attracted in the instant case. Section 3 of the West Bengal Payment of Subsistence Allowance Act, 1969, hereinafter referred to as the West Bengal Act, provides as follows:
"3.(1) An employee who is placed under suspension shall, during the period of such suspension, be entitled to receive payment from the employer as subsistence allowance an amount equal to fifty per centum of the wages which the employee was drawing immediately before such suspension:
Provided that where the period of suspension exceeds 90 days the amount of subsistence allowance shall be increased after the expiry of 90 days to seventy-five per centum of the wages which the employee was drawing immediately before such suspension:
Provided further than an employee shall not be entitled to any subsistence allowance if he accepts employment during the period of suspension in any place other than the establishment where he had been working immediately before his suspension.
(2) An employee shall not in any event be liable to refund or forfeit any part of the subsistence allowance admissible to him under sub-section (1) but when an employee is exonerated of the charge which caused his suspension, the subsistence allowance paid to him for any period shall be adjusted against the full wages admissible to him for the same period."
15. Counsel appearing on behalf of the respondent bank submits that an employee of the bank serving in the State of West Bengal is entitled to 50 per cent of the wages, which the employee was drawing immediately before such suspension by virtue of the provisions of the West Bengal Act although the subsistence allowance allowed under the Shastri Award is 30 per 9 cent of such wages. Furthermore, after expiry of three months the employees governed by the Shastri Award are entitled to 1/2 of the wages that they would have got, but for the suspension, whereas the employees governed by the West Bengal Act are entitled to 75 per cent of the wages paid to them prior to their suspension.
16. Counsel appearing on behalf of the respondent bank submits that the petitioner cannot claim the benefit of the West Bengal Act as also the Bipartite Settlement and/or Indian Banks Association circulars."
The findings of the learned Single Judge are at paragraph 17 to 29 of the judgment, which read:
"17. In the State of West Bengal the banks are bound to comply with the provisions of the West Bengal Act and pay 50% of the wages as subsistence allowance upon suspension although employees elsewhere in India might be entitled to only 30 per cent of the wages.
18. There can be no doubt that the West Bengal Act is binding on all banks in West Bengal as rightly submitted by the Counsel appearing on behalf of the petitioner. Section 3 of the West Bengal Act provides for the minimum subsistence allowance to which a suspended employee in the State of West Bengal is statutorily entitled.
19. There is nothing, however, in the West Bengal Act which prevents a bank from paying a subsistence allowance higher than that provided in section 3 of the West Bengal Act.
20. On the other hand, section 5 of the West Bengal Act clearly provides as follows:-
"5. Nothing in this Act shall affect any right or privilege to which any employee is entitled on the date of commencement of this Act under any law for the time 10 being in force or under any contract, custom or usage which is more favourable to him than any right or privilege conferred upon him by this Act".
21. From the provisions of the West Bengal Act, it is clear that an employee is entitled to the benefit of any right or privilege, inter alia, under a contract, which is more favourable than the right or privilege conferred under the said Act.
22. At the material time when the West Bengal Act was enacted and/or enforced, the conditions of service of bank employees were governed by the Shastri Award as modified by the Desai Award and other Bipartite Settlements.
23. The petitioner cannot, therefore, be deprived of any right under the Awards/Bipartite Settlements referred to above, which might be more favourable to the petitioner than the rights conferred under the West Bengal Act.
24. In the instant case, the petitioner's salary at the time of his suspension was Rs.2,992.14/-. The petitioner has been under suspension for years and the salary and allowances of the employees of the bank have been revised from time to time. Had the petitioner not been under suspension he would have got 10 times the salary he got on the date of his suspension.
25. The submission on behalf of the bank that Section 5 would protect only those rights which had actually accrued to an employee or a class of employees on the date of commencement of the West Bengal Act and not afterwards is difficult to accept.
26. The West Bengal Act being a beneficial legislation, the provisions thereof are to be interpreted in harmony with the object and spirit of the Act to provide for a minimum statutory subsistence allowance to suspended employees in the State of West Bengal, and not in a narrow pedantic means 11 that would defeat the very purpose, of a beneficial legislation enacted in the interest of employees kept under suspension.
27. In any event, as observed above, on the date of commencement of the West Bengal Act, the terms and conditions of service of bank employees including subsistence allowance of suspended bank employees was governed by the Shastri Award as modified by the Desai Award and other Bipartite Settlement.
28. In view of section 5 of the West Bengal Act, an employee in the State of West Bengal would be entitled to the higher of the subsistence allowance calculated under Section 3 of the West Bengal Act or under the Bipartite Settlements read with circular of 1998. If the subsistence allowance calculated as per paragraph 557 of the Shastri Award read with the circular of 1998 is higher, the suspended employee would be entitled to higher subsistence allowance as per paragraph 557 of the Shastri Award read with the said 1998 circular, on an from the date on which subsistence allowance computed under the Shastri Award became higher than that computed under Section 3 of the West Bengal Act.
29. The denial of revision of salary and allowances in the matter of computation of subsistence allowance to employees serving in West Bengal is patently discriminatory and violative of Article 14 of the Constitution of India. At least, as far as the West Bengal Act is concerned, the same does not stand in the way of better benefits being granted to a suspended employee in view of section 5 of the said Act."
Applying the said principle, in the given case there cannot be any doubt that the scheme that is found to be more beneficial to the employees should be extended to the employee under suspension. Mr. Majumdar, has drawn our attention to the order passed by the Division Bench in an appeal against the said 12 judgment being APO No.157 of 2009, WP No.1737 of 2005 (United Bank of India vs. Swapan Kumar Basu) decided on 8th July, 2009. We have perused the order of the co-ordinate Bench. It appears that the appeal was allowed only in part by allowing the Bank liberty to proceed on the basis of the charge-sheet already issued by the Bank. In so far as the subsistence allowance is concerned, the Division Bench on being informed that the petitioner was paid subsistence allowance at the rate of 50% directed the bank to do so for three months and in case the proceedings is not complete, he would be paid at the rate of 75% until the proceedings is culminated in a logical conclusion. This leads us to affirm the view that the best possible benefit should be extended to the employee concerned during suspension by way of subsistence allowance.
We feel that the learned trial Judge has rightly applied the said principle in the instant case. The appellant bank has not been able to satisfy this Court as to why the petitioner shall not be entitled to the benefit of the said circular dated 11th August, 1998. At this stage, we must point out that the bank had filed a supplementary affidavit in which it has stated that the total amount payable to the writ petitioner on the date of his dismissal is Rs.16,60,511.74 out of which he was paid Rs.14,88,111.48 which includes his salary and subsistence allowance and taking into consideration the salary revision that had happened during the period from 1st November, 2007 till his 13 dismissal on 6th November, 2013 and a further amount of Rs.1,72,400.26 is payable to the writ petitioner and the said amount has already been paid to him. It appears that the bank has paid the said amount as an acceptance of the direction passed by the learned Single Judge. Thus, we do not find any reason to interfere with the impugned order.
Mr. Sanyal, however, submits that the amount received by the petitioner does not reflect the actual amount receivable as subsistence allowance in view of the revision of pay scales happened during the aforesaid period. In this proceedings, we cannot adjudicate the said dispute. We cannot go into the question as to whether the said amount actually represents the entitlement of the petitioner in terms of the order passed by the learned Single Judge. We only record our concurrence with the finding of the learned Single Judge and affirm the order under appeal.
Accordingly, the appeal and the application stand dismissed.
(SOUMEN SEN, J.) (SAUGATA BHATTACHARYYA, J.) A/s.